New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Apart from the general personal data protection issues to be considered, there are two significant risks.

First, under article 17 of Law 10/2021, any digital program or software to monitor remote workers must grant employees privacy and protection of personal data according to the Organic Law on Personal Data Protection and Digital Rights Guarantees. In particular:

  • an employer’s access to the digital technology provided to the remote worker must be limited to checking compliance with labour obligations and to guaranteeing the integrity of the devices;
  • employers must establish the terms of use of the digital devices, and the workers’ representatives must participate in drafting them;
  • employers must inform remote workers about the terms of use of the digital devices; and
  • regardless of the terms of use, an employer’s access to the digital means must be necessary for the employer to achieve a legal purpose, appropriate for such legal purpose and proportional to achieve such legal purpose. Based on this, the employer should implement the least invasive way of monitoring remote workers’ activity to achieve the legal purpose the employer is pursuing.

Any measure to monitor employees’ activity should meet these requirements; otherwise, an employer’s decision arising from such monitoring could be deemed unfair, and there could be a breach of the employee’s privacy, which could lead to a damages claim and an administrative fine.

Second, employers must comply with the principles of personal data processing under article 5 of the GDPR, especially purpose limitation and data minimisation, which means that the personal data the employer can process should be only what is the minimum necessary data for the performance of the labour contract or compliance with their legal obligations. Therefore, employers are not entitled to, for instance, force remote workers to turn on their cameras during working hours.

Third, despite remote working, employers must comply with health and safety obligations, which could lead to the employer or its health and safety services provider visiting an employee’s home to evaluate its risks. In that case, employers should issue a report justifying the visit and provide it to the remote worker and the health and safety workers’ representatives in advance. Additionally, to access any remote worker’s home, the employer must first obtain their consent.

If they do not give their consent, measures on health and safety should be based only on the information provided by the remote workers.

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Article 4 of the Law on Remote Working provides equal rights for remote and on-site workers, so they receive equal pay and are entitled to the same schedule, breaks and work-life balance, and they are expressly included in equality plans and harassment prevention protocols.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Since March 2020, under article 2 Royal Law-Decree 9/2020, employers cannot dismiss employees because of the covid-19 situation, and it is assumed that any dismissal since then is due to the pandemic. This means that employers must have strong reasons to justify dismissals to avoid them being somehow associated with covid-19. This prohibition is still in force.

The law does not specify whether breaching this prohibition should lead to the dismissal being deemed null or unfair. This has resulted in dissimilar high court resolutions: on the one hand, some have deemed dismissals null (forcing the employer to reinstate the worker and pay accrued salaries since the dismissal); and, on the other hand, some resolutions have deemed dismissals unfair (the employer can choose to pay severance for unfair dismissal or reinstate the employee and pay the salaries accrued since the dismissal). Until the Supreme Court rules on this matter, the consequences of breaching this prohibition are not clear.

Unlike dismissals, no other regulations specifically limit or prevent employers from changing employees’ labour conditions due to covid-19. Therefore, to implement any changes, employers should follow the ordinary procedure, which consists of justifying the change on business-related grounds and, if the decision affects at least 10 employees in companies employing less than 100 people; 10% of employees in companies employing between 100 and 300 people; or 30 employees in companies employing more than 300 people, then they must schedule a 15-day negotiation period with the workers’ representatives, although it is not mandatory to reach an agreement.

Most companies, however, have not made changes to their staff’s labour conditions, except for contract suspensions or recoverable paid leave.

Additionally, the government has passed several regulations since March 2020 (eg, Royal Law-Decrees 8/2020, 24/2020, 30/2020, 2/2021 and 11/2021) to provide specific and easier temporary contract suspensions for force majeure due to covid. These new regulations have mainly eased the ordinary procedure on temporary contract suspensions, and they have also allowed certain companies to obtain social security exemptions or reductions, subject to their commitment to not dismiss any employees whose contracts were suspended for six months after they resume work.

The Spanish government also passed Royal Law-Decree 10/2020, entitling certain employees to a recoverable paid leave between 30 March and 9 April 2020, which was the worst period of the pandemic. Workers were exempt from working without any impact on their salary, but they had to make up that time between the end of the state of alert and the end of the year.

Last updated on 21/09/2021